What is Court of Protection mediation, and how does it work? Arabella Tresilian answers five questions on the process — for lawyers, social workers, families and care providers — with an anonymised case study.
In this Ask A Mediator session, we’re talking about what Court of Protection mediation is. You can watch the video here.
This is the fourth video in my #AskAMediator series. It’s a broad topic, and I know the people watching come at it from different angles — family members, advocates, care providers, Court of Protection lawyers, and social workers — so rather than answering one question, I’ve answered five. If you missed the earlier videos, start with What Is Mediation? and How Is Health and Care Mediation Different From Other Kinds of Mediation?.
What is Court of Protection mediation?
Court of Protection mediation is an independent, confidential process to help resolve disagreements about the welfare, residence, care or finances of a person who may lack the mental capacity to make those decisions for themselves — referred to as P in the Court of Protection. It can be used before proceedings are issued, or run in parallel with live Court of Protection proceedings, without prejudicing anyone’s legal position. It doesn’t replace the judge’s role on the occasions when a judicial decision is genuinely needed — what it does is resolve what can be resolved by agreement between the parties, so the court is left to focus only on what truly needs a judicial decision.
Why would a Court of Protection lawyer or social worker consider mediation for a case?
Very often, the real problem in these disputes isn’t the substantive issue, such as capacity — it’s a breakdown in communication, perhaps between family members, or between a family and professionals, sitting underneath the disagreement. Mediation is good at addressing that communication and relationship repair directly, rather than leaving it to resurface at every future hearing. It’s usually faster and less costly than contested proceedings too, and because it can run alongside live litigation without prejudice to anyone’s position, referring a case to mediation is never a concession.
For social workers specifically, raising mediation early can resolve what’s really an underlying communication breakdown, without it escalating into formal action or a court application that may not have been necessary at all. It’s always worth seeing whether mediation can support dialogue early on.
How does mediation support P to participate, and is it more P-friendly than going to court?
Mediation is a genuinely flexible process — it’s designed around each case, so it can be shaped around P’s needs, wishes, interests and preferences. That might mean Easy Read materials, interpreters, shorter sessions, or whatever adjustments mean P and the family around them can engage fully.
P’s own wishes and feelings are heard and fed back into the process in whatever way is most accessible to them, even where they can’t or don’t wish to take part in the discussions themselves. It matters to me that their voice stays central, rather than being filtered entirely through legal argument — mediation is particularly good at allowing the time and space for that.
Health and Care Mediation doesn’t have a formal working relationship with the Office of the Official Solicitor, but where P is represented by the Official Solicitor, the solicitor instructed on P’s behalf is welcome to attend mediation and represent P’s interests directly throughout.
And because mediation isn’t bound by the court’s remit, it can also deal with practical and relational matters that a judge may have no power to rule on — visiting arrangements, day-to-day care routines, how a family and a care provider communicate, rebuilding trust — the things that often matter most to P’s actual quality of life.
What kinds of Court of Protection disputes get mediated?
We often see disputes between attorneys or family members about P’s welfare, residence or finances, including disagreements between joint LPA holders or between Deputies. There are also breakdowns in the relationship between a family and a care provider, including where a placement is at risk of ending and proceedings are already underway. More generally, disputes that sit alongside or precede a formal Court of Protection application are commonly referred by solicitors, local authorities, ICBs, and sometimes NHS legal teams.
What does a Court of Protection mediation actually look like, and what can it realistically achieve?
As with most mediation processes, it starts privately — the mediator meets each party individually, to get to know them, answer their questions about the process, and start to understand their perspective. Often, we’d like parties to come together for joint sessions, but where there’s a complex set of issues, a long day ahead, or relationships are especially strained, we can be flexible — sometimes working through separate meetings, or lawyer-to-lawyer meetings, to advance agreements in whatever way works best for everyone involved.
By the end, we’d hope to produce a mediation agreement. That might mean protocols about conduct, communication, visits and care plans — whatever the issues were that the parties wanted to discuss and resolve, so they can feel able to work together going forward. Mediation doesn’t necessarily replace legal proceedings where a judge genuinely needs to make a decision, but it can narrow the issues in dispute, meaning court time is used in a more focused way. Costs are agreed on a case-by-case basis, and legal aid is sometimes available.
A case study
Here’s an anonymised, composite case example, drawn from several matters rather than any one case, representative of what this can look like in practice.
A placement had broken down, and the relationship between the family and the care provider had collapsed. P was facing an eviction notice and an unwanted move, with no suitable alternative provision in place, and the case had gone to the Court of Protection. The judge welcomed pausing litigation to allow mediation to do what the adversarial process couldn’t — rebuild enough trust for everyone to keep working together.
With legal representatives present, and much of the day conducted lawyer-to-lawyer, the family and the care provider were able to agree protocols for conduct, communication, visits and the care plan. P’s own wishes were heard outside the joint sessions, via the Official Solicitor and with supported communication from the mediator, and fed back throughout. By the end of the mediation, the eviction notice had been rescinded, and the care provider and family — supported by the social worker — were able to send P a joint, reassuring message about what would happen next, presenting a united front again.
The immediate threat to P’s placement was lifted, and P was left with some ongoing security. The mediation agreement was worked out and, with everyone’s agreement, later presented to the court.
Court of Protection mediation is something I think is really worth more people knowing about — whether you’re a family member, a lawyer, a social worker or a care provider. If you’d like to talk through whether it could help with a case, get in touch. I’m a CEDR-accredited mediator, with ten years’ experience as a mediator and the last eight specialising in this field, and every conversation is confidential, with no obligation to proceed.
Arabella Tresilian is the founder of Health and Care Mediation. Find out more or book a scoping conversation → Enquiries
